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The Trump administration wants to require the Department of Health and Human Services to review most of its regulations by 2023 — and automatically void those not assessed in time.

A proposed rule would require HHS to analyze within 24 months about 2,400 regulations — rules that affect tens of millions of Americans on everything from Medicare benefits to prescription drug approvals.

The move has met a fierce backlash from health providers and consumer advocates who fear it would hamstring federal health officials while they seek to control the COVID-19 pandemic, which has killed more than 250,000 Americans.

The HHS proposal appears designed to tie up the incoming Biden administration, say critics. They note the timing of the proposal, which was issued Nov. 4 — the day after Election Day, when it appeared President Donald Trump would likely lose his bid for a second term.

“The cynical part of me thinks this is a perfectly designed way to bring the department to a standstill in the next administration,” said Mary Nelle Trefz, health policy associate at Common Good Iowa, a consumer advocacy group.

She said HHS does not have the bandwidth to review all these regulations during the next two years while running its many programs, including Medicaid and Medicare.

If the proposal is finalized before Jan. 20, it is likely to be undone by the incoming Biden administration. But the chore would add to duties of HHS officials trying to attack the pandemic, she said.

HHS officials deny their proposal was aimed at the Biden administration. Brian Harrison, chief of staff at the department, said he first sought legal review of the proposal in April. “Our lawyers moved as fast as they could,” he said, and the rule was written with the expectation it would be implemented during Trump’s second term.

“The outcome of the election had nothing to do with it,” he said.

Democrats and Republicans for the past 40 years have failed to review existing regulations, leaving unnecessary and irrelevant rules on the books, Harrison said.

But Andy Schneider, a research professor at the Center for Children and Families at Georgetown University who has written about the proposal, said he fears the sunset provision will be one of many actions the Trump team will take to distract the incoming administration.

“It speaks volumes that they waited until the end of the fourth year of the administration to decide that the regulatory process needs to be improved,” he said.

Incoming administrations have typically frozen new rules that were pending but have not taken effect before Inauguration Day. That gives new administrations time to unwind them.

Efforts to enact reviews of funding bills and other legislation, known as sunset clauses, have been popular among conservatives for years. The federal government has occasionally used sunset provisions in legislation, such as the tax cuts enacted during the George W. Bush administration, but it is rare to make department regulations subject to these types of mandatory deadlines.

The option is more popular among states, which have adopted varying procedures for measures passed by the legislatures or regulatory boards. Those efforts run the gamut from requiring most initiatives to be reviewed to identifying specific agencies or legislation that must be reconsidered on a regular timetable.

HHS accepted public comments on the proposal though Dec. 4, except on part of the rule affecting Medicare regulations, which has a Jan. 4 deadline. A final rule is expected before Biden becomes president on Jan. 20.

HHS officials don’t point to any specific regulations they say are outdated. However, in their supporting material for the proposal, they note in part:

“An artificial-intelligence-driven data analysis of HHS regulations found that 85 percent of department regulations created before 1990 have not been edited; the Department has nearly 300 broken citation references in the Code of Federal Regulations, meaning CFR sections that reference other CFR sections that no longer exist.”

Harrison said the scarcity of reviews is due to “inertia” and “lack of an incentive mechanism.”

“Many presidents have formally ordered their agencies to review existing regulations, and it has been existing law for 40 years, so simply asking the divisions to review these regulations has been tried for decades and proven to be ineffective,” Harrison said.

“We need to incentivize their behaviors,” he said.

With more than 80,000 employees, the department should be able to complete the review of 2,400 rules in 24 months, he added.

Harrison said the proposal is authorized by a law signed by President Jimmy Carter in the late 1970s requiring federal agencies to review existing rules. But that law has no provision that calls for cutting regulations that are not reviewed within a certain time frame, Schneider said.

The proposal says the HHS secretary would have flexibility to stop some regulations from being eliminated “on a case by case basis.”

HHS estimates the reviews would cost up to $19 million over two years. Regulations would have to be reviewed every 10 years under the proposal.

When he took office in 2017, Trump vowed that for every regulation his administration issued, it would remove two. In July, he said his administration had more than exceeded that goal.

“For every one new regulation added, nearly eight federal regulations have been terminated,” he said in a Rose Garden speech. The Washington Post Fact Checker said that claim was based on “dubious math and values each regulation as having equal weight.”

One of the few groups to endorse the HHS proposal is the National Federation of Independent Business. The group said the proposal would alleviate regulatory burdens on small businesses.

But other groups, such as the American Academy of Neurology, suggest the proposed rule would limit input from interest groups on changes to existing regulations, because it would not follow the usual process of seeking public comments when altering rules. “The AAN is highly supportive of the current process to modify and rescind regulations through the notice and comment period, as it affords stakeholders the necessary opportunity to provide feedback on proposed regulations prior to changes being implemented,” the group told HHS.

The Medicaid and CHIP Payment and Access Commission, which advises Congress, opposes the proposal. “MACPAC questions the need for a proposed rule that creates a duplicative and administratively burdensome new process that is likely to create confusion for beneficiaries, states, providers, and managed care plans,” the group said in a letter to HHS. “The new requirements will create additional unnecessary work that will distract the department and CMS from the critical roles they play in our health care system, Medicaid and CHIP amid the pandemic and its resulting economic challenges.”

It’s unclear how the proposed rule would affect long-standing regulations for product safety and standards, said Betsy Booren, senior vice president of the food lobbying group Consumer Brands Association. “The idea that these regulations would be sunset because a regulations timer went too long is not acceptable,” she wrote in comments on the proposed rule.

This story was produced by Kaiser Health News, an editorially independent program of the Kaiser Family Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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As hospitals across the country weather a surge of COVID-19 patients, in Seattle — an early epicenter of the outbreak — nurses, respiratory therapists and physicians are staring down a startling resurgence of the coronavirus that’s expected to test even one of the best-prepared hospitals on the pandemic’s front lines.

After nine months, the staff at Harborview Medical Center, the large public hospital run by the University of Washington, has the benefit of experience.

In March, the Harborview staff was already encountering the realities of COVID-19 that are now familiar to so many communities: patients dying alone, fears of getting infected at work and upheaval inside the hospital.

This forced the hospital to adapt quickly to the pressures of the coronavirus and how to manage a surge, but all these months later it has left staff members exhausted.

“This is a crisis that’s been going on for almost a year — that’s not the way humans are built to work,” said Dr. John Lynch, an associate medical director at Harborview and associate professor of medicine at the University of Washington.

“Our health workers are definitely feeling that strain in a way that we’ve never experienced before,” he said.

Until the late fall, the Seattle area had mostly kept the virus in check. But now cases are rising faster than ever, and Washington Gov. Jay Inslee has warned a “catastrophic loss of medical care” could be on the horizon.

“This is the very beginning, to be honest, so thinking about what that looks like in December and January has got me very concerned,” Lynch said.

Lessons Learned From Spring Surge

When the outbreak first swept through western Washington, hospitals were in the dark on many fronts. It was unclear how contagious the virus was, how widely it had spread and how many intensive care beds would be needed.

Intensive care unit nurse Whisty Taylor remembers the moment she learned one of her colleagues — a young, active nurse — was hospitalized on their floor and intubated.

“That’s really when it hit — that could be any of us,” Taylor said.

Concerns over infection control and conserving personal protective equipment meant nurses were delegated all sorts of unusual tasks.

“The nurses were the phlebotomists and physical therapists,” said nurse Stacy Van Essen. “We mopped the floors and we took the laundry out and made the beds, plus taking care of people who are extremely, extremely sick.”

A lot has changed since those early days.

Staff members besides just nurses are now trained to go into COVID rooms and be near patients, and the hospital has ironed out the thorny logistics of caring for these highly contagious patients, said Vanessa Makarewicz, Harborview’s manager of infection control and prevention.

How to clean the rooms? Who’s going to draw the blood? What’s the safest way to move people around?

“We’ve grown our entire operation around it,” Makarewicz said.

The physical layout of the hospital has changed to accommodate COVID patients, too.

“It’s still busy and chaotic, but it’s a lot more controlled,” said Roseate Scott, a respiratory therapist in the ICU.

Harborview has also learned how to stretch its supplies of PPE safely. And as cases started to rise significantly last month, the hospital quickly reimposed visitor restrictions.

“In the past, we’ve had visitors who then call us two days later and say, ‘Oh, my gosh, I just came up positive,’” said nurse Mindy Boyle.

Boyle said months of caring for COVID patients — and all the steps the hospital has taken, including having health care workers observed as they don and doff their PPE — has tamped down the fears of catching the virus at work.

“It still scares me somewhat, but I do feel safe, and I would rather be here than out in the community, where we don’t know what’s going on,” said Boyle.

‘We’re All Tired of This’

Preparation can go only so far, though. The hospital still runs the risk of running low on PPE and staff, just like so much of the country.

During the spring, the hospital cleared out beds and recruited nurses from all over the nation, but that is unlikely to happen this time, with so many hospitals under pressure at once.

“All things point to what could be an onslaught of patients on top of a very tired workforce and less staff to go around,” said Nate Rozeboom, a nurse manager on one of the COVID units. “We’re all tired of this, tired of taking care of COVID patients, tired of the uncertainty.”

Already, COVID’s footprint at Harborview is expanding and bringing the hospital close to where it was at its previous peak.

“The fear I have personally is overwhelming the resources, using up all the staff — and the numbers are still going to go up,” said Scott.

And she said the realities of caring for these desperately ill patients have not changed.

“When they’re on their belly, laying down with all the tubes and drains and all these extra lines hanging off of them, it takes about four to five people to manually flip them over,” Scott said. “It feels intense every time. It doesn’t matter how many times you’ve done it.”

Hospitalized patients are faring better than in the spring, but there are still no major breakthroughs, said Dr. Randall Curtis, an attending physician in the COVID ICU and a professor of medicine at the University of Washington.

“The biggest difference is that we have a better sense of what to expect,” Curtis said.

The few treatments that have shown promise, including the steroid dexamethasone and the antiviral remdesivir, have “important but marginal effects,” he said.

“They’re not magic bullets. … People are not jumping out of bed and saying, ‘I feel great. I’d like to go home now,’” Curtis said.

Taylor said nursing has never quite felt the same since she started in the COVID ICU.

“These people are in the rooms for months. Their families can only see them through Zoom. The only interaction they have is with us through our mask, eyewear, plastic,” Taylor said. “We’re just giving their body a runaround trying to keep them alive.”

This story is from a reporting partnership that includes NPR and KHN. 

This story was produced by Kaiser Health News, an editorially independent program of the Kaiser Family Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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SACRAMENTO — President-elect Joe Biden didn’t back “Medicare for All” during his campaign.

Yet his choice of California Attorney General Xavier Becerra to serve in the nation’s top health care post is fueling California lawmakers’ most progressive health care dreams, including pursuing a government-run single-payer system at the state level.

“Now it’s much more real, and it energizes me in terms of pushing for single-payer now,” said state Assembly member Ash Kalra (D-San Jose), who is considering spearheading a new single-payer campaign next year — a move he argues is more plausible under the Biden-Harris administration, with Becerra at the helm of the U.S. Department of Health and Human Services.

“It’s not good enough to just say that we believe health care is a human right. We’re now obligated to act,” Kalra said.

Across California, Democrats are changing their political calculus for what could be possible if Becerra, 62, is confirmed to the powerful position. After nearly four years of battling President Donald Trump and federal policies they view as unfriendly, Gov. Gavin Newsom and other Democratic leaders welcome a strong ally who could help make California a laboratory for progressive ideas. He would set the agenda for key federal health care agencies, which have broad authority to steer more money to states and approve their ambitious health care proposals.

Becerra, whose mother emigrated from Mexico, would be the first Latino to serve in the position. He would lead a massive $1.3 trillion federal health care apparatus that oversees agencies responsible for Medicare, Medicaid, vaccines, prescription drug approval and the U.S. public health response to the coronavirus pandemic.

“It’s a game changer for us — the stale era of normalcy versus the fresh era of progress,” Newsom said Monday. “We’re going to take advantage of this moment and these relationships — not unfairly.”

A native Californian with 30 years of political experience, 24 of them in Congress, Becerra has long backed a progressive health care agenda, including single-payer, environmental justice and protecting immigrants’ access to safety-net care. He has fiercely defended the Affordable Care Act and fought to preserve reproductive rights. He has gone after deep-pocketed pharmaceutical companies, and successfully sued a large health system in California for anti-competitive practices.

Newsom said he’s already spoken to Becerra about California’s health care priorities and is “accelerating” a dramatic transformation of the state’s Medicaid program to better serve the chronically sick and those suffering from untreated mental illness.

Immigrant advocates, who are deploying a new strategy to expand the state’s Medicaid program to all income-eligible unauthorized immigrants, plan to lobby Becerra and the Biden administration for additional federal money that could help fast-track it. They also want Becerra to agree to allow young unauthorized immigrants known as “Dreamers” to purchase insurance through Covered California, the state exchange. And California Senate President Pro Tem Toni Atkins said she’s “excited” to seek renewed approval to use federal Medicaid dollars for nontraditional uses, such as combating homelessness and providing emergency housing assistance.

“We’ve had a lot less money to bank on under Trump, but Becerra at HHS bodes well for us,” said Cathy Senderling-McDonald, incoming executive director for the County Welfare Directors Association of California. “We can rethink and possibly open up more federal funding.”

Democrats are also seizing on Becerra’s past support for single-payer, which dates back to his early congressional career in the 1990s. He has described himself as a lifelong single-payer advocate, and when a reporter asked him last year whether the idea is too costly and “pie in the sky,” Becerra responded, “I love pie.”

A young XAVIER BECERRA, Biden’s pick to run HHS, lays out his health care principles as a congressman in 1994.

“We must have universal coverage. We must have portability. We must have choice of provider,” Becerra says, endorsing single-payer. pic.twitter.com/fkJVNV0DYQ

— Dan Diamond (@ddiamond) December 7, 2020

But it’s unclear whether Becerra as HHS secretary would embrace progressive — and expensive — health care ideas like single-payer. In his first public remarks on his nomination Tuesday, he touted his work helping to pass the Affordable Care Act and said on Twitter he would “build on our progress to ensure every American has access to quality, affordable health care.”

Some congressional Republicans are raising red flags about Becerra’s nomination, which must be confirmed by the U.S. Senate. They cite his anti-Trump stance and opposition to some federal policies, such as a Trump-era Obamacare rule that allows private employers with religious objections to deny workers contraceptive coverage. Becerra has sued the Trump administration 107 times, including 13 times on health care.

Although Becerra has no direct health care experience, “the court has become the arbiter of health policy, and he certainly got experience there,” said Trish Riley, executive director of the National Academy for State Health Policy.

In announcing Becerra as his Cabinet pick Tuesday, Biden described him as someone who is unafraid to take on special interests and has spent his career working to expand health care access and reduce racial health disparities. California, under Becerra’s leadership, led the defense of the federal health care law before the U.S. Supreme Court last month.

“No matter what happens in the Supreme Court, he’ll lead our efforts to build on the Affordable Care Act, to work to dramatically expand coverage and take bold steps to lower health care prescription drug costs,” Biden said at the news briefing.

In Congress, I helped pass the Affordable Care Act. As California’s Attorney General, I defended it. As Secretary of Health and Human Services, I will build on our progress and ensure every American has access to quality, affordable health care—through this pandemic and beyond.

— Xavier Becerra (@XavierBecerra) December 7, 2020

At the outset, however, Becerra would be consumed by managing the U.S. response to the coronavirus pandemic. In his new role, he would oversee the Centers for Disease Control and Prevention and the National Institutes of Health.

“The No. 1 task he’s going to be completely absorbed with is getting this pandemic under control. We need a consistent message,” said Bruce Pomer, a public health expert and chief lobbyist for the California Association of Public Health Laboratory Directors. “It’s going to be critical for the Biden administration to show people that it can be effective at keeping the American people safe.”

Becerra’s public comments Tuesday indicated the pandemic would be his top priority. “The COVID pandemic has never been as vital or as urgent as it is today,” Becerra said, adding that the economic fallout has “thrust families into crisis. Too many Americans are sick or have lost loved ones, too many have lost their jobs.”

But liberal California lawmakers and advocates say the pandemic has made their ambitious health care goals all the more urgent. And should Becerra back a progressive health agenda in California, similar proposals could follow from other states, said Mark Peterson, a professor of public policy, political science and law at UCLA.

“California has pushed the envelope on health care beyond where other states are,” he said. “And that gives more capacity for California sensibilities and ideas to get into the mix in Washington.”

This story was produced by KHN (Kaiser Health News), which publishes California Healthline, an editorially independent service of the California Health Care Foundation. KHN is not affiliated with Kaiser Permanente.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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Vaccines that protect against COVID-19 are on the way. What should older adults expect?

The first candidates, from Pfizer and Moderna, could arrive before Christmas, according to Alex Azar, who heads the Department of Health and Human Services.

Both vaccines are notably effective in preventing illness due to the coronavirus, according to information released by the companies, although much of the data from clinical trials is still to come. Both have been tested in adults age 65 and older, who mounted a strong immune response.

Seniors in nursing homes and assisted living centers will be among the first Americans vaccinated, following recommendations last week by a federal advisory panel. Older adults living at home will need to wait a while longer.

Many uncertainties remain. Among them: What side effects can older adults anticipate and how often will these occur? Will the vaccines offer meaningful protection to seniors who are frail or have multiple chronic illnesses?

Here’s a look at what’s known, what’s not and what lies ahead.

Decision-making timetable. Pfizer’s vaccine will be evaluated by a 15-member Food and Drug Administration advisory panel on Thursday. Moderna’s vaccine is expected to go before the panel Dec. 17.

At least two days before each meeting, an analysis by FDA staff will be made public. This will be the first opportunity to see extensive data about the vaccines’ performance in large phase 3 clinical trials, including more details about their impact on older adults.

So far, summary results disclosed in news releases indicate that Pfizer’s vaccine, produced in partnership with BioNTech, has an overall efficacy rate of 95% and efficacy of 94% in people 65 and older. Moderna’s overall efficacy is 94%, with 87% efficacy in preventing moderate disease in older adults, according to Moncef Slaoui, chief science adviser to Operation Warp Speed, the government’s COVID-19 vaccine development program.

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If the advisory panel gives a green light, the FDA will decide within days or weeks whether to authorize the Pfizer and Moderna vaccines for emergency use. Distribution of the vaccine has already begun, and health care providers are expected to begin administering it immediately after the FDA acts.

Allocation framework. At a Dec. 1 meeting of the Advisory Commission on Immunization Practices (ACIP), which guides the Centers for Disease Control and Prevention on vaccines, experts recommended that people living in long-term care (primarily nursing homes and assisted living facilities) and health care workers be the first groups to get COVID-19 vaccines.

This recognizes the extraordinary burden of COVID-19 in long-term care facilities. Although their residents represent fewer than 1% of the U.S. population, they account for 40% of COVID deaths — more than 100,000 deaths to date.

The commission’s decision comes despite a lack of evidence that Pfizer’s and Moderna’s vaccines are effective and safe for frail, vulnerable seniors in long-term care. Vaccines were not tested in this population. Federal officials insist side effects will be carefully monitored.

Next in line likely would be essential workers who cannot work from home, such as police, firefighters, teachers and people employed in food processing and transportation, according to commission deliberations Nov. 23 that have not come to a formal vote.

Then would be adults with high-risk medical conditions such as diabetes, cancer, kidney disease, obesity, heart disease and autoimmune diseases and all adults age 65 and older.

Although states typically follow ACIP guidelines, some states may choose, for instance, to vaccinate high-risk older adults before some categories of essential workers.

Left off the list are family caregivers, who provide essential support to vulnerable older adults living in the community — an unpaid workforce of tens of millions of people. “If someone is providing day-to-day care, it makes sense they should have access to the vaccine, too, to keep everyone safe,” said Beth Kallmyer, vice president of care and support for the Alzheimer’s Association.

Further prioritization. The priority groups constitute nearly half of the U.S. population — 21 million health care workers, 3 million long-term care residents, 66 million essential workers, more than 100 million adults with high-risk conditions and 53 million adults age 65 and older.

With initial supplies of vaccines limited, setting priorities will be inevitable. Practically, this means that hospitals and physicians may try to identify older adults who are at the highest risk of becoming seriously ill from COVID-19 and offer them vaccines before other seniors.

A study of more than 500,000 Medicare beneficiaries age 65 and older provides new evidence that could influence these assessments. It found the conditions that most increase older adults’ chances of dying from COVID-19 are sickle cell disease, chronic kidney disease, leukemias and lymphomas, heart failure, diabetes, cerebral palsy, obesity, lung cancer and heart attacks, in that order.

“Out of all Medicare beneficiaries, we identified just under 2,500 who had no medical problems and died of COVID-19,” said Dr. Martin Makary, co-author of the study and a professor of health policy and management at Johns Hopkins Bloomberg School of Public Health in Baltimore. “We knew risk was skewed toward comorbidity [multiple underlying medical conditions], but we didn’t realize it skewed this much.”

Supplies available. Both the Pfizer and Moderna vaccines require two doses, administered three to four weeks apart. The companies have said about 40 million doses of their vaccines should be available this year, enough to fully vaccinate about 20 million people.

After that, 50 million doses might become available in January, followed by 60 million doses in both February and March, according to Dr. Larry Corey, a virologist who heads the COVID-19 Prevention Trials Network.

That translates into enough vaccine for another 85 million people and should be sufficient to vaccinate older adults in addition to medical personnel on the front lines and many other at-risk individuals, Corey suggested at a recent panel on COVID-19 sponsored by the National Academy of Medicine and American Public Health Association.

He acknowledged these were estimates, based on information he has been given. Pfizer and Moderna have not yet specified how much vaccine will be delivered and when. Nor is it clear when other vaccines under investigation will become available — 13 are in phase 3 clinical trials — or what their monthly production capacity might be.

Distribution issues. As Pfizer’s and Moderna’s vaccines are rolled out, a very vulnerable group may have difficulty getting them: 2 million seniors who are homebound and another 5.3 million with physical impairments who have problems getting around.

The reason: handling and cold storage requirements.

Pfizer’s vaccine needs to be stored at minus 70 degrees Celsius, calling for special equipment not available in small hospitals, clinics or doctors’ offices. Moderna’s vaccine needs long-term storage at minus 20 degrees Celsius.

Landmark Health provides in-home medical care to more than 120,000 frail, chronically ill homebound seniors in 15 states. “We don’t have the capabilities to store and distribute these vaccines to our population,” said Dr. Michael Le, the company’s co-founder and chief medical officer.

Instead, he said, Landmark is working to arrange transportation for its patients to centers where COVID-19 vaccines will be administered and educating them about the benefits of the vaccines. “Given the trust, the bond we have with our patients, we can play a big role as advocates,” Le said.

Addressing mistrust. Advocates have a big job ahead of them. According to a recent poll from the University of Michigan, only 58% of older adults (ages 50 to 80) said they were very or somewhat likely to get a COVID-19 vaccine. A significant number of older adults, 46%, thought they’d get the vaccine eventually but wanted others to go first. Only 20% wanted to get it as soon as possible.

Most important in making decisions is knowing how well the vaccine works, according to 80% of the 1,556 older adults surveyed. Just over half (52%) said a recommendation from their doctor would be influential.

Dr. Sharon Inouye, a geriatrician at Hebrew Senior Life in Boston and a professor of medicine at Harvard Medical School, is among the physicians impatiently awaiting the publication of data from Pfizer’s and Moderna’s phase 3 clinical trials.

Among the things she wants to know: How many older adults with chronic health conditions participated? How many participants were 75 and older? Did side effects differ for older adults?

“What I worry about most is the side effects,” she said. “We may not be able to know about serious but rare side effects until millions of people take them.”

But that’s a gamble she’s willing to take. Not only will Inouye get a vaccine, she just told her 91-year-old mother, who lives in assisted living, to say “yes” when one is offered.

“My whole family lives in fear that something will happen to her every day,” Inouye said. “Even though there’s a lot we still don’t know about these vaccines, it’s compelling that we protect people from this overwhelming illness.”

With his state reeling amid one of the worst COVID-19 outbreaks in the nation, the last thing South Dakota Speaker of the House Steven Haugaard wants to be dealing with during the upcoming legislative session is marijuana. But the state’s voters haven’t left the Republican much choice.

This fall, South Dakota became the first state in the U.S. to legalize both medical marijuana and recreational marijuana in the same election. Haugaard, who long opposed any form of marijuana legalization, now must participate in the creation of a medical marijuana program.

South Dakota voters enshrined legal marijuana in the state’s constitution. So if Haugaard had any thoughts about reversing the initiative once lawmakers reconvene on Jan. 12, they’ve been dashed.

“With a constitutional amendment, there’s really not much we can do about it. It’s written in stone until it’s repealed,” Haugaard said.

South Dakota is one of a handful of states in which voters both approved marijuana ballot questions and elected Republicans to lead state governments. Montana and Arizona, two other states in which Republicans control (or will soon control) the governor’s office and legislature, also backed recreational marijuana at the ballot box. Mississippi passed a measure legalizing medical marijuana.

New Jersey, which has a Democratic governor and Democratic-majority legislature, also passed a recreational marijuana ballot question.

Many conservative lawmakers oppose the legalization of marijuana, an illegal drug under federal law. But they are discovering obstacles to simply passing bills to reverse the initiatives when state legislatures return to work in January. Some marijuana opponents, realizing the limitations to altering a constitutional amendment, are turning to the courts or local officials to undo the measures or at least blunt the effects of legal pot.

Before the November election, 11 states and Washington, D.C., had legalized recreational marijuana, most of them left-leaning states, with exceptions like Alaska. An additional 21 states allow medical marijuana. In the wake of the election, 15 states will have legalized recreational marijuana and 35 will allow medical marijuana.

In conservative states like Montana, where passage of a bill can change or negate a ballot initiative, one thing giving lawmakers pause is that many voters who elected them also approved the legalization of marijuana use for adults 21 and up.

In Montana, 57% of voters approved the recreational marijuana initiative — the same share received by President Donald Trump. In South Dakota, 54% voted for recreational marijuana and a whopping 70% approved medical marijuana. In Arizona, the recreational pot proposition also passed easily.

Those kinds of margins are what caused state Rep. Derek Skees to reconsider a bill he was drafting to repeal the Montana ballot measure in anticipation of its passage.

Skees told the Missoulian the day after the election that after it became clear voters supported it — while also supporting Republican candidates for office up and down the ballot — he decided to shelve it.

“There’s no way I’m going to try to overturn the will of Montana,” Skees told the newspaper.

Haugaard said opposition to the South Dakota measure was derailed by the pandemic and voters never got the message from opponents about the potential negative impacts of legalization.

Proponents of legalization spent nearly $800,000 on their campaign in South Dakota — most of it coming from the New Approach Political Action Committee, a pro-legalization group that works across the country — and five times what opponents of ballot measures raised.

Colorado, the first state to allow recreational use of marijuana in 2014, is often held up as the poster child for what can happen. Proponents say the state has benefited from increased tax income and economic activity. But opponents, including Haugaard, point to studies about increased traffic deaths in Colorado since legalization to explain why they think it’s a bad idea.

“That side of the story wasn’t told and had it been told I think this vote would have gone differently,” Haugaard said.

Marijuana opponents aren’t waiting to see what state lawmakers do, if anything — they’re going to court. The Pennington County, South Dakota, sheriff and the superintendent of the South Dakota Highway Patrol have filed a lawsuit challenging the constitutionality of the marijuana amendment. The Rapid City Journal reported the suit had the backing of Gov. Kristi Noem, and that the state was paying for part of the suit. Noem was a vocal opponent of legalization during the campaign.

Should the legal challenge fail, the amendment is scheduled to take effect July 1 and, according to the governor’s office, it will be up to the state health department to implement it. The legislature will have more control over how the medical marijuana program will work. Haugaard said that will be a big focus of the 37-day session.

Opponents in Montana are also asking the courts to disallow recreational marijuana. Steve Zabawa, a Billings car dealer who has campaigned against legalized marijuana for years, said in his lawsuit that what the voters passed would illegally take power from state lawmakers by designating where tax revenue will go.

Zabawa blamed its passage at the ballot box on pro-marijuana advocacy groups that so outraised and outspent opponents of the measure that he compared it to David and Goliath.

“They candy-coated this deal. They lied to the entire state of Montana by saying that this would benefit veterans and fish and wildlife,” Zabawa said. “They crossed a line and we’re calling them on it.”

Zabawa said that if the courts don’t block recreational marijuana, he’s hopeful that Montana’s Republican-controlled Statehouse will stymie its implementation.

“I just don’t think there’s a lot of love for marijuana in Montana,” Zabawa said.

In Arizona, a recreational marijuana ballot measure was rejected by voters just four years ago. This year it passed by a wide margin. The state’s voters also chose Joe Biden over President Donald Trump, the first time a Democrat won the presidential election in the state since 1996.

It’s unlikely Arizona’s Republican-led legislature can do anything to stop implementation because of a 1998 law that prohibits lawmakers from changing a voter-approved initiative without a three-quarters majority.

State lawmakers’ hands may be tied, but the initiative did give municipalities some power to restrict its use. The day after the initiative passed, Oro Valley Town Council approved an emergency declaration that would limit which type of businesses could sell marijuana and prohibited its use in public places.

The declaration was based on language written by the League of Arizona Cities and Towns and given to members prior to Election Day.

One of the major backers of the state ballot measures is the Marijuana Policy Project, a Washington, D.C.-based organization that supports sweeping marijuana policy changes across the country. Deputy Director Matthew Schweich said this election showed how the public’s opinion on marijuana is rapidly evolving.

Schweich said he believes the results of the 2020 election bode well for future legalization efforts in states and even at the federal level. Because of that growing support, he dismissed any chance Montana or South Dakota could derail recreational legalization but added that his organization will do whatever it can to fight those efforts.

“This is a bipartisan issue [and] I think we’re at a tipping point. We’ve passed it in big states and small states, liberal states and conservative states,” he said. “We’re feeling pretty good. We believe that 2021 is our year.”

This story was produced by Kaiser Health News, an editorially independent program of the Kaiser Family Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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I still remember exactly where I was sitting decades ago, during the short film shown in class: For a few painful minutes, we watched a woman talking mechanically, raspily through a hole in her throat, pausing occasionally to gasp for air.

This story also ran on The New York Times. It can be republished for free.

The public service message: This is what can happen if you smoke.

I had nightmares about that ad, which today would most likely be tagged with a trigger warning or deemed unsuitable for children. But it was supremely effective: I never started smoking and doubt that few if any of my horrified classmates did either.

When the government required television and radio stations to give $75 million in free airtime for antismoking ads between 1967 and 1970 — many of them terrifyingly graphic — smoking rates plummeted. Since then, numerous smoking “scare” campaigns have proved successful. Some even featured celebrities, like Yul Brynner’s posthumous offering with a warning after he died from lung cancer: “Now that I’m gone, don’t smoke, whatever you do, just don’t smoke.”

As the United States faces out-of-control spikes from COVID-19, with people refusing to take recommended, often even mandated, precautions, our public health announcements from governments, medical groups and health care companies feel lame compared with the urgency of the moment. A mix of clever catchphrases, scientific information and calls to civic duty, they are virtuous and profoundly dull.

The Centers for Disease Control and Prevention urges people to wear masks in videos that feature scientists and doctors talking about wanting to send kids safely to school or protecting freedom.

Quest Diagnostics made a video featuring people washing their hands, talking on the phone, playing checkers. The message: “Come together by spending time apart.”

As cases were mounting in September, the Michigan government produced videos with the exhortation, “Spread Hope, Not Covid,” urging Michiganders to put on a mask “for your community and country.”

Forget that. Mister Rogers-type nice isn’t working in many parts of the country. It’s time to make people scared and uncomfortable. It’s time for some sharp, focused, terrifying realism.

“Fear appeals can be very effective,” said Jay Van Bavel, associate professor of psychology at New York University, who co-authored a paper in Nature about how social science could support COVID response efforts. (They may not be needed as much in places like New York, he noted, where people experienced the constant sirens and the makeshift hospitals.)

I’m not talking fear-mongering, but showing in a straightforward and graphic way what can happen with the virus.

From what I could find, the state of California came close to showing the urgency: a soft-focus video of a person on a ventilator, featuring the sound of a breathing machine, but not a face. It exhorted people to wear a mask for their friends, moms and grandpas.

But maybe we need a PSA featuring someone actually on a ventilator in the hospital. You might see that person “bucking the vent” — bodies naturally rebel against the machine forcing pressurized oxygen into the lungs, which is why patients are typically sedated.

(Because I had witnessed this suffering as a practicing doctor, I was always upfront about the trauma with loved ones of terminally ill patients when they were trying to decide whether to consent to a relative being put on a ventilator. It sounds as easy as hooking someone to an IV. It’s not.)

Another message could feature a patient lying in an ICU bed, immobile, tubes in the groin, with a mask delivering 100% oxygen over the mouth and nose — eyes wide with fear, watching the saturation numbers rise and dip on the monitor over the bed.

Maybe some PSAs should feature a so-called COVID long hauler, the 5% to 10% of people for whom recovery takes months. Perhaps a professional athlete like the National Football League’s Ryquell Armstead, 24, who has been in and out of the hospital with serious lung issues and missed the season.

These PSAs might sound harsh, but they might overcome our natural denial. “One consistent research finding is that even when people see and understand risks, they underestimate the risks to themselves,” Van Bavel said. Graphs, statistics and reasonable explanations don’t do it. They haven’t done it.

Only after Chris Christie, an adviser to President Donald Trump, experienced COVID, did he start preaching about mask-wearing: “When you have seven days in isolation in an ICU, though, you have time to do a lot of thinking,” Christie said, suggesting that people, “follow CDC guidelines in public no matter where you are and wear a mask to protect yourself and others.”

We hear from many who resist taking precautions. They say, “I know someone who had it and it’s not so bad.” Or, “It’s just like the flu.”

Sure, most longtime smokers don’t end up with lung cancer — or tethered to an oxygen tank — either. (That, in fact, was the justification of smokers like my father, whose two-pack-a-day habit contributed to his death at 47 of a heart attack.)

These new ads will seem hard to watch. “We live in a Pixar era,” Van Bavel reflected, with traditional fairy tales now stripped of their gore and violence.

But studies have shown that emotional ads featuring personal stories about the effects of smoking were the most effective at persuading folks to quit. And quitting smoking is much harder than maintaining physical distance and mask-wearing.

Once a vaccine has proved successful and enough people are vaccinated, the pandemic may well be in the rearview mirror. In the meantime, the creators of public health messaging should stop favoring the cute, warm and dull. And — at least sometimes — scare you.

Xavier Becerra, President-elect Joe Biden’s choice to head the Department of Health and Human Services, is set to be a pandemic-era secretary with no public health experience. Whether that matters depends on whom you ask.

Becerra built his career in the U.S. House of Representatives before becoming California’s attorney general, and some wonder whether his political and legal skills would be the right fit to steer HHS through a health catastrophe that’s killing thousands of Americans every day.

Although he would bring years of health politics and policy work to the role, none of it comes from front-line experience as an executive or administrator running public health programs, managing patient care or controlling the spread of disease.

Yet beyond the immediate COVID-19 crisis, many Democrats see Becerra as an important ally to undo what they view as years of damage from the Trump administration’s efforts to undermine the Affordable Care Act; the Medicaid program, which provides coverage for more than 70 million Americans; reproductive health; and more.

As California’s attorney general since 2017, Becerra has been a thorn in the side of the Trump administration, filing 107 lawsuits to overturn federal action on the Affordable Care Act, contraception, immigration, workers’ rights, LGBT rights, education, consumer protection, gun violence and the environment.

“COVID is the biggest issue on the table, but it is not the only issue on the table,” said Dr. Georges Benjamin, executive director of the American Public Health Association. “If you look at his body of work, he is not your traditional attorney. His body of work in the health area is substantial. And I think that counts.”

On Tuesday, Biden will formally introduce Becerra along with other candidates for top health jobs, many with deep public health experience.

They include Dr. Rochelle Walensky, an infectious disease expert at Harvard Medical School who practices at Massachusetts General Hospital in Boston, as the next director of the Centers for Disease Control and Prevention. Biden’s choice for COVID “czar” is Jeffrey Zients, a private equity executive and former Obama administration official who will steer the pandemic response from the White House. Dr. Vivek Murthy is the nominee for U.S. surgeon general, a position he held in the final Obama years.

Biden has said he will let the federal government’s longtime scientists guide his pandemic response, in particular those at the CDC, which is overseen by HHS. President Donald Trump sidelined the agency, damaging its reputation as the world’s most trusted public health institution.

That Becerra’s deepest experience is political makes some observers wary.

“I think there’s always a danger of letting that sort of cloud the scientific and medical judgment of how best to do things. I hope they can manage that well,” said Jeffrey Morris, a biostatistics professor at the University of Pennsylvania who has worked on COVID issues. He said he had mixed feelings about the Becerra selection. “What is the leadership style, and is there going to be micromanaging from the top down into these organizations? To me, that’s the key aspect.”

Garry South, a Los Angeles-based Democratic strategist, called Becerra’s appointment “curious.”

“A lot of people are raising eyebrows — even those who are pleased and proud that Biden picked another Californian to join his administration,” South said. “If Republicans are looking to target a few Biden appointees for rejection, you can expect them to make the case that there is no logical nexus between a state attorney general and serving as secretary of Health and Human Services.”

Still, Becerra, who as a member of Congress worked in the House Democratic leadership and was a member of the powerful Ways and Means Committee, has more health policy background and knowledge of U.S. health care finance and delivery systems than many previous heads of the sprawling HHS, which employs more than 80,000 people and has a $1.3 trillion budget.

For three years, Becerra has managed California’s Justice Department, with a $1.1 billion budget and 4,800 employees. As attorney general, he’s been deeply involved in crafting health policy. His office has gone after anti-competitive behavior from hospitals. And he’s sponsored legislation to take on drugmakers and pay-for-delay schemes.

“He’s gone after powerful health care interests,” said Anthony Wright, executive director of the nonprofit Health Access California.

Antitrust enforcement is more commonly handled by the U.S. Department of Justice and the Federal Trade Commission. But Becerra made it a priority as California’s top cop. In May 2018, he brought an antitrust case against nonprofit health care giant Sutter Health, accusing the system of monopolistic practices that drove up the cost of medical care in Northern California.

“This is a big ‘F’ deal,” Becerra said at a news conference unveiling the lawsuit. The case — which encompassed years of work by the department and his predecessors and millions of pages of documents — alleged that Sutter had aggressively bought up hospitals and physician practices across the region and illegally exploited that market power for profit. Health care costs in Northern California, where Sutter dominates with its 24 hospitals, are 20% to 30% higher than in Southern California, even after adjusting for Northern California’s higher cost of living, according to a 2018 study from the Nicholas C. Petris Center at the University of California-Berkeley that was cited in the complaint.

In December 2019, Sutter agreed to pay $575 million to settle the case and promised to end a host of practices that Becerra alleged stifled competition.

Becerra channeled lessons learned from the Sutter case into an antitrust bill in the California legislature. The legislation ultimately failed, but it would have given the attorney general power to review private equity- or hedge fund-led mergers or acquisitions of a health care system or hospital.

“The Sutter case is a blueprint for a national policy that could start to restore competition for the health care system and save American health care consumers billions of dollars right away,” said Glenn Melnick, a health care economist at the University of Southern California. He views Becerra as “a real expert in some of the most important issues facing our health care system, not just in California but nationally.”

If confirmed by the Senate, Becerra supporters say, he will bring to the job a political acumen from his two decades-plus on Capitol Hill that’s likely to be an asset for the Biden administration as it negotiates pandemic relief bills and other health legislation with a politically divided Congress.

Former California Democratic member of Congress Henry Waxman worked with nearly a dozen HHS secretaries during his time on the House Energy and Commerce Committee. He said he’s not worried that Becerra lacks experience leading a vast health care bureaucracy. The HHS secretary job, he said, is one “where you need political skills to see how far you can get with other people in a political context.” That’s why most HHS secretaries, Republicans and Democrats, have had political backgrounds.

Becerra “understands the policies and has a deep commitment to them,” he said. “I think he’ll do well.”

Public health officials say the job before Becerra is gigantic.

Dr. Gary Pace, the health officer in rural Lake County, California, said Becerra would be tasked with rebuilding a broken public health system.

“We want a federal partner who can give us good guidance — we haven’t had that,” Pace said. “For him, I’d say what we need first is starting to get the CDC back into a flagship public health role, with trusted and timely evidence-based guidance.”

Born in Sacramento to Mexican immigrant parents, Becerra would be the first Latino HHS secretary. He was elected to Congress in his 30s and has been involved in national health legislation during the past two decades, even though he is more widely known for his involvement in immigration and tax issues. He joined the powerful House Ways and Means Committee, which oversees tax and health legislation, in the 1990s. The committee played a central role in the drafting of what would become the Affordable Care Act in 2010.

While HHS oversees major federal health agencies, including the CDC, the Centers for Medicare & Medicaid Services, the Food and Drug Administration and the National Institutes of Health, it also has a wide-ranging human services portfolio, including oversight of child care and welfare programs, Head Start, programs for seniors and refugee resettlement.

“It’s not like any one person is going to have everything,” said Dan Mendelson, a former Clinton administration health official, who called Becerra an “inspired choice.” “I think that the most important point is that this is a leader of a team and not the be-all and end-all.”

KHN staff writers Rachel Bluth and Samantha Young contributed to this story.

This story was produced by KHN, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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Early in the pandemic, Ximena Rebolledo León, a registered nurse at Telluride Regional Medical Center in southwestern Colorado, needed to find everyone who’d been in contact with a sick Latino worker whose boss had told him he would lose his job if he didn’t show up.

The man had gone to work and infected four co-workers, all Latinos, with COVID-19 — so Rebolledo León then had to track down their movements to determine who else had been exposed to the coronavirus in the wealthy ski resort community.

“I ended up calling 13 different families, and I put a total of 85 people in isolation or quarantine,” Rebolledo León recalled.

People fighting the spread of COVID-19 face many unique challenges when doing contact tracing among low-income Latino immigrants in tight-knit communities. Long-standing health care disparities, job insecurity, immigration status, language barriers and a profound distrust of government all complicate the already tricky task.

COVID-19 has also highlighted how essential those immigrants are to their communities. While Telluride is known for its glitzy resort tucked into the mountains, the place functions because of the workers — many of them first-generation immigrants — within the surrounding San Miguel County. When the medical center implemented new COVID-cleaning protocols, it fell to the cleaning staff of Latinos. Grocery stores, restaurants and many other businesses remained open only because their Hispanic workers continued to come to work.

“They are the backbone of what makes this town go round,” Rebolledo León said.

That’s why Latino front-line workers in Telluride and across the country suffer some of the greatest consequences of COVID-19. Hispanic people in the U.S. face higher rates of infection than the general population. And while they make up about 17% of the population, they have accounted for 24% of COVID deaths.

San Miguel County had 267 confirmed cases of COVID-19 as of Dec. 6, but no deaths. Hispanics account for about 11% of the population of roughly 8,000 but 23% of the cases from March to August.

Even so, it took weeks as the pandemic unfolded for the county health department to provide information about the virus in either Spanish or Chuj, a Mayan language spoken by many of the county’s residents from Guatemala.

“We were in crisis mode, and I think one of the first things that falls by the wayside is health equity,” said Grace Franklin, director of the health department. “It took a little bit of time for us to check back in and say, ‘What are we missing? Who are we missing?’”

So public health officials, like those in Telluride and the surrounding county, are leaning on trusted voices such as Rebolledo León from within those immigrant communities to track and contain the virus, and to help vulnerable people access the care and resources they need.

“Trust is a huge factor,” said Maggie Gómez, deputy director of the Center for Health Progress, a Denver-based health advocacy group. “When you show up in a Latinx community in a suit, and you’re knocking on the door and they don’t know who you are, they can tell you’re not from there — they’re going to be pretty suspicious.”

Many of the people Rebolledo León was calling hadn’t received even the most basic information about COVID-19 in words they could understand. She said they hadn’t gotten clear messages on why they had to stay home if they weren’t feeling sick or why a negative COVID test didn’t mean they were in the clear. She was calling homes every morning, checking to see if anybody had developed symptoms, or needed food or other support to remain in quarantine. She gave them her personal cellphone number.

“I wanted them to have access to a nurse,” Rebolledo León said. “So it became a round-the-clock job.”

A woman with diabetes called asking whether she’d be safe working in a restaurant. A house cleaner wondered if it was safe for her to clean if the owners were at home. They would call her late at night, wondering if they should go to the emergency room when having trouble breathing.

“If you’re insured? Yeah, you go to the ER,” she said. “But if you’re uninsured? You’re terrified of that $2,000 bill.”

Whenever new information became available, Rebolledo León, who emigrated from Mexico more than 20 years ago, recorded Spanish-language videos on her phone, posting them on Facebook and texting them out. She doesn’t speak Chuj, but the health department hired an interpreter and posted a COVID video in Chuj on its website.

The videos went viral among the Latino communities in the county. So much so that many people Rebolledo León had never met recognized her as Nurse Ximena from the videos.

But by summer, Rebolledo León was overwhelmed and had to step back to focus on her work at Telluride Medical Center. The county health department in April had hired Dominique Bruneau Saavedra, an architect who emigrated from Chile in 2016 and had been working at a local nonprofit. Bruneau Saavedra took over the bulk of contact tracing among Spanish-speaking residents.

In one case, Bruneau Saavedra asked four Latino men to isolate. One lost his job because of it. Many of the people she contacted worked multiple jobs. That expanded their potential contacts.

Housing intended for four people often sheltered six or seven, she said. Some homes had a single bathroom, making it hard for one person to isolate from the rest of the household. For many immigrants, she said, their entire social circle is the people at work. When asked to stay away from their jobs, they may not have other friends outside their home who can help with food or other needs.

Bruneau Saavedra also discovered that many who worked multiple jobs used different names or nicknames with different employers. In trying to track possible cases, at times she discovered two people on her list were one and the same, having the same cellphone number. But she also found households where multiple residents shared a single number.

Bruneau Saavedra said that, when she called non-Hispanics, she noticed a contrast in their level of concern. Some chose to isolate by going camping alone in the woods, she said, almost like a vacation. For low-income immigrants, isolation can be an economic and legal crisis. In Colorado, an estimated 1 out of 3 immigrants are undocumented.

While social services could help with food and other assistance, the agencies needed to know Social Security numbers, immigration status and who else lived in the home. Those were nonstarters for many who had status issues or undocumented family members living with them.

“It’s been a fight every single step,” Rebolledo León said. “If you’re undocumented in this country, you are aware that the information you are sharing could put so many others in serious problems.”

Telluride is small enough that when one person is infected, it’s not hard to find connections to half the town.

On the other hand, Bruneau Saavedra said, the county is lucky because it is a small community.

“It feels like contact tracing is manageable and is possible, unlike in an urban infrastructure,” Bruneau Saavedra said. “Everybody knows each other.”

This story was produced by Kaiser Health News, an editorially independent program of the Kaiser Family Foundation.

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Senate Republicans are signaling they will delay considering President-elect Joe Biden’s nominee to run the Department of Health and Human Services, threatening to slow the Biden administration’s response to the pandemic that has killed more than 283,000 Americans.

On Monday, Republican spokespeople for the committees responsible for vetting HHS nominations said the Senate may not hold hearings on California Attorney General Xavier Becerra, Biden’s pick to lead the department, until the Senate approves committee assignments and other organizational details for the new Congress.

Republicans, who will hold at least 50 seats next year, remain in control of the Senate until Jan. 20. But Georgia has two Senate runoff elections scheduled for Jan. 5, and those results will determine which party controls the chamber in the new, 117th Congress.

Political observers say the results could take days or even weeks.

“Every day is a wasted day,” said Kathleen Sebelius, who served as President Barack Obama’s first HHS secretary. (Sebelius is on the board of KFF, and KHN, which publishes California Healthline, is an editorially independent program of KFF.)

On Monday, Biden announced he has asked Becerra to serve as HHS secretary. Becerra mounted a vigorous defense of Democratic health laws against the Trump administration and other Republicans. He led the effort by 20 states and the District of Columbia to fight a suit brought by Republican state officials and supported by President Donald Trump to overturn the Affordable Care Act. That case was argued before the Supreme Court last month.

The early reaction from Republicans signaled Becerra could face strong political opposition to his nomination, with critics like Arkansas Sen. Tom Cotton citing Becerra’s opposition to abortion restrictions and calling him “unqualified” to lead HHS.

“I’ll be voting no, and Becerra should be rejected by the Senate,” he wrote on Twitter. Becerra also supported single-payer health care reform.

In addition, Biden intends to name Dr. Rochelle Walensky, chief of infectious diseases at Massachusetts General Hospital, as the head of the Centers for Disease Control and Prevention, and private equity executive Jeffrey Zients to be his COVID “czar” heading up a task force in the White House. Those jobs do not require Senate confirmation. Biden is nominating Dr. Vivek Murthy as surgeon general, who must face hearings before the Senate.

Becerra would be the first Latino to lead HHS. Before becoming attorney general, he served in the House of Representatives, representing Los Angeles for 24 years. There, he was a member of Democratic leadership and served on the Ways and Means Committee, the House committee charged with writing health-related tax policy.

Becerra returned to California in 2017, replacing the outgoing attorney general who had just been elected to the Senate — now Vice President-elect Kamala Harris.

The HHS secretary is responsible for one of the federal government’s largest departments, coordinating not only the Centers for Medicare & Medicaid Services but also the Food and Drug Administration and the CDC — agencies critical to the nation’s pandemic response.

Although Biden has created his own task force to address the pandemic, the White House lacks many of the powers of the HHS secretary — including the authority to implement its own recommendations, said Donna Shalala, who served as HHS secretary under President Bill Clinton for eight years.

“Any delay [in confirmation] delays COVID, despite a strong White House coordination,” Shalala said, “because you’ve got to get the agencies in sync and you can’t do that from the White House.”

In 2009, as H1N1 flu began to spread and Obama’s first HHS pick withdrew from consideration, the administration was forced to improvise. With no confirmed health secretary, Obama turned to Janet Napolitano, the Homeland Security secretary, to coordinate a plan to distribute vaccines with the CDC.

Sebelius was sworn in as HHS secretary in late April, two days after the Obama administration declared H1N1 a public health emergency.

It would be hard to mount a pandemic response without a secretary, she said. “That pressure falls on Congress,” Sebelius said. “There’s just a sense we can’t screw around with this.”

She also added that the Obama administration did not pursue any lower-level health appointments before confirming the secretary, a protocol that left many offices vacant. She expects Biden will follow the same process.

The Senate can, and often does, begin considering nominees before a new president is sworn in, in particular by arranging one-on-one meetings for senators and examining a nominee’s qualifications and background. Presidents Donald Trump and George W. Bush’s nominees for HHS secretary both received confirmation hearings before Inauguration Day, though Democrats later fought Trump’s nominee, then-Rep. Tom Price (R-Ga.), by boycotting his committee vote.

Republicans say that until the Senate approves what is known as an organizing resolution, which formalizes details like which senators sit on which committees, they cannot move forward with confirmation hearings.

A further complication is that while Republicans already control the two committees tasked with vetting an HHS secretary, neither chairman is staying in that job next year. Sen. Lamar Alexander of Tennessee, who runs the Health, Education, Labor and Pensions Committee, is retiring from Congress. And due to term limits, Iowa Sen. Chuck Grassley, who runs the Finance Committee, will move to a different committee.

Senate Democrats, who would take control of the confirmation process next month should they win both of Georgia’s Senate seats, praised the selection of Becerra and promised to push for a speedy process.

Becerra “has been a staunch defender of affordable health care and preexisting condition protections in the face of Trump’s attacks in court and federal regulation,” said Oregon Sen. Ron Wyden, the Finance Committee’s top Democrat. “I look forward to Attorney General Becerra’s hearing in the Finance Committee as soon as possible next year, so he is on the job quickly.”

“Xavier Becerra is a highly qualified nominee, and I will be pushing for a swift, fair confirmation so we can get to work on the serious health issues our nation faces,” said Sen. Patty Murray of Washington, the HELP Committee’s top Democrat.

If Democrats win both of the Georgia elections next month, the Senate would be evenly split 50-50, likely leading to debates about how to divide control and distracting senators from nomination hearings.

When that happened in 2001, Senate Democrats held the majority for a couple of weeks until Bush was sworn in, making Vice President Dick Cheney the tie-breaking vote and giving Republicans the majority on Jan. 20. Bush’s first HHS secretary, Tommy Thompson, was confirmed four days later.

Bill Dauster, who advised Democrats on the Senate’s procedural rules for decades, said that the split took a long time to negotiate in 2001 but that it left behind a model that senators can use today.

Senate Republicans could follow the precedent of holding hearings before the inauguration, especially due to the urgency of responding to the pandemic, Dauster said.

“If they don’t, it will clearly be foot-dragging,” he said.

This story was produced by Kaiser Health News, an editorially independent program of the Kaiser Family Foundation.